The right fix for FISA

“In a world made new by Sept. 11, [Karl Rove] put terrorism and war to work in an electoral rather than a historical context and used them as wedge issues.”

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No kidding. The latest Rove campaign was on full display the second half of July as Congress rushed to pass appropriations bills and adjourn for the August recess.

In a well-orchestrated campaign, Republicans began talking about “increased chatter” concerning an August attack in the U.S. (true, though it didn’t happen) and why we could not prevent it unless we fixed (gutted) the Foreign Intelligence Surveillance Act — a relic from the 1970s that has created a huge “gap” in our ability to intercept foreign-to-foreign communications between terrorist operatives intent on harming Americans (not true).

The drumbeat increased in both the Senate and the House — fueled by visits from Director of National Intelligence Mike McConnell to key committee members and leadership. McConnell’s claim that two-thirds of foreign-to-foreign communications cannot be intercepted because of FISA’s restrictions went effectively unchallenged.

His over-broad proposal, which undid the careful checks and balances in FISA, competed with a responsible, narrower effort offered by Democratic leaders — and McConnell won. If a silver lining can be found here, it is that the law sunsets in six months.

Now comes the challenge: to craft a FISA law that enjoys overwhelming support and replaces the “blank check to Gonzo” that Congress provided just weeks ago. Can the White House be persuaded to negotiate a new law? Not if the wedge politics it played last month persist. But I believe Congress could be persuaded to do so — and to pass it with veto-proof majorities in the House and the Senate.

Here’s why. For starters, the new FISA law deals out Congress and the courts, the two bodies entrusted with oversight of the old law. During the debate on FISA, numbers of Republicans expressed discomfort with the broad new grant of authority in the McConnell bill.

As long as “foreign intelligence” is the standard, virtually any communications are fair game — the only limits being post-action audits in which the executive branch essentially polices itself. In other words, many Republicans now worry that they gave away the Fourth Amendment, a bulwark against the “big government” they so detest.

In addition, there is a growing sense by some members that they were stampeded by the adroit use of politicized intelligence — in this case, a discredited report that suicide bombers planned to attack the Capitol building in August. When the report first surfaced from the Capitol Police, the National Counterterrorism Center and the CIA issued a joint disclaimer of its accuracy.

But that disclaimer failed to reach those who were falsely convinced that credible intelligence existed. Those folks were snookered, and their colleagues’ “crying wolf” won’t work again.